Negotiating A Book Contract

Negotiating a Book Contract is the complete step-by-step guide to negotiating your own book contract (or to making sure your agent hasn’t missed anything important to you!) written by the author of this site, Mark Levine. Negotiating a Book Contract applies to books of fiction and nonfiction, textbooks and children’s books, whether in hardcover, paperback or as an e-book, and is for illustrators as well as writers.

Negotiating a Book Contract is organized according to the typical sequence of clauses in publishers’ book contracts. You can quickly and easily match your contract, clause by clause and section by section, with Levine’s analysis and comments. Immediately see what you need added, deleted or changed to protect your interests.

Can I change the agent’s clause in the proposed contract my publisher just sent me?

Q.  Can I change the agent’s clause in the proposed contract my publisher just sent me?

A.  You certainly can.

The clause most publishers include in your contract is one that your agent has given them.  If there are aspects that you want to change, you can certainly ask — even demand — that they be changed.  The contract is between you and the publisher and, as a legal matter, your agent doesn’t have any say in it.

Although your agent’s consent to your changes aren’t required, it is prudent and helpful to discuss them with your agent first and explain why you want them and hope that s/he will agree.  If the agent doesn’t agree with the changes (or if you are concerned that the agent won’t wholeheartedly advocate for them), you can contact the publisher yourself and insist on them.   Literary agents are generally considered fiduciaries and, as such, should not refuse to convey your requests to the publisher (but the legal classification does not mean that your request must be presented enthusiastically).

(Originally published in the Summer 2012 issue of the Authors Guild Bulletin.  © Mark L. Levine)

Answers to questions on this site are general in nature only.  You should consult a lawyer for information about a particular situation.  For more information about book publishing contracts and issues, see Levine’s book.

Should I agree to a clause that says I can only sue the publisher where it’s located?

Q. I am considering signing a contract directly with an overseas publisher, but it refuses to change the clause that says any lawsuits —whether brought by it or me— must be conducted exclusively in its country. If it sues me, even spuriously, there is no way I could travel there to defend myself. Any suggestions?

A. This is a provision that publishers frequently refuse to budge on, but here are several alternatives you can try.

  1. Provide that any suit by you against it has to be in the publisher’s country but any suit by it against you has to be where you live. This should discourage spurious lawsuits while not preventing a local lawyer (in whichever country) from being hired to pursue valid claims.
  2. Choose a third location that is convenient for both of you or one that is mutually inconvenient. Either would put you and the publisher on equal footing, which is what you are presumably trying to accomplish.
  3. Keep the clause but delete “exclusively.” It gives the publisher a significant part of what it wants but, from your viewpoint, doesn’t make it exclusive so any lawsuit can still take place in your home court (subject to getting jurisdiction over the publisher by properly serving it with a complaint).
  4. Omit the clause altogether, which leaves the dispute for another day (which may never come). The publisher may consider this a satisfactory way to resolve the impasse. Although omitting an important clause is not something I typically recommend, having it would be worse for you since you’re dealing with an overseas situation.

Each of these approaches (or at least the first three) deals with the issue head-on. What may also be helpful — whether or not one of those alternatives is accepted — is what computer-savvy people call a “workaround,” viz., getting to the place you want but by different means. Consider the following:

  • Accede to the publisher’s position but require that before a lawsuit can be brought by either side, both must mediate the dispute or attempt to do so (diligently and in good faith) for a specified period (e.g., 90 days). Mediation is a non-binding procedure in which a skilled third party seeks to work out a compromise acceptable to both sides. Giving both sides the opportunity to air complaints and suggest solutions can help to dampen emotions and overcome the kind of misunderstandings that frequently accompany seemingly irreconcilable disputes. It can be done long distance through 3-way phone calls or by the mediator speaking (or corresponding) separately with each party and then proposing solutions s/he thinks might be satisfactory to both. This alone may resolve the problem without your being required to travel abroad and without the publisher retreating from its position on location of litigation.
  • If you do decide to sign the publisher’s clause (with or without the “exclusive” language) and are eventually sued, be aware that in some jurisdictions contractual provisions requiring suits to be brought in a foreign court may not be enforced unless the clause also says that you 1) accept or consent to that court’s jurisdiction, and 2) waive rights relating to an “inconvenient forum” (often expressed as forum non conveniens). Because of this, if language indicating either of those things is in the contract you are asked to sign, delete them since it is possible the publisher will be satisfied with the clause without either.

By the way, you say that the publisher refuses to change its position. Is that truly so? Have you walked away from the deal and the publisher not called you back? In real hardball negotiating, only if you are truly willing to walk away do you have a chance of succeeding when there’s an impasse on a key issue and all attempts at compromise have failed. The downside of that, of course, is that you have to be prepared to abandon the deal.

Whether this particular clause should be that issue is a separate question. Many people would not consider it one to kill a deal for. However, if your publisher refuses to accept any of the above alternatives or the workaround option, you may want to consider how reasonable your publisher is in general. And if the answer is “not very”—which would be a valid conclusion since the alternatives are reasonable and certainly the workaround causes no harm other than to delay hauling you into court —then you may not want that company or person to be your publisher in any event.

(Originally published in the Winter 2010 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

What if my publisher loses my artwork?

Q. I write and illustrate children’s books. My contracts say that the publisher is “not responsible for the loss or damage of any material” submitted by me. That’s okay for my manuscript since I have a copy on my computer, but what can I do about original drawings and watercolors that I submit?

A. Publishers that still have such unqualified, antediluvian language in their contracts should be embarrassed (though I’m not holding my breath). What they presumably mean to say is that if something happens to your artwork that is not their fault (the building burns down, a messenger taking it to another location is mugged, etc.), they are not responsible. That may be acceptable to you. But if an employee takes a piece of your artwork home to hang in his living room or someone inadvertently uses it as a placemat when eating lunch at h/h desk, there is absolutely no reason why the publisher shouldn’t be responsible.

Virtually every publisher recognizes this and, if asked, will readily qualify the clause you quote with “provided Publisher has exercised reasonable care with respect thereto” or, at the least, “other than in the case of Publisher’s gross negligence or willful misconduct.” Although these—especially the first— can be okay, better yet would be “other than in the case of negligence, willfulness or reckless misconduct by Publisher, its employees, agents or freelancers.”

The reasons why this alternative protects you (and your work) more than the first two are:

  1. A “gross negligence” standard doesn’t provide you much protection. Essentially, it means a major foul-up—bordering on either incredible stupidity or intentional recklessness—and isn’t always that easy to prove. “Negligence” (without the adjective), however, is more likely to be the type of (mis)conduct that leads to the damage or loss of your artwork. Negligence is “the failure to act as a reasonably prudent person would under similar circumstances” or, briefly speaking, carelessness. Quite simply, the basic question involved is whether the publisher or you should bear the “risk of loss” for the carelessness of one of the publisher’s employees or freelancers. Even publishers who are intransigent on other issues should see the validity of your position if you phrase it this way.
  2. Although mentioning only “negligence” should suffice to encompass standards of conduct that are worse—such as recklessness and willfulness (negligence is by definition unintentional; recklessness, though often bordering on being intentional, is generally not either) —specifically mentioning willfulness and reckless misconduct alongside negligence should eliminate any attempt by a publisher’s lawyer to argue that negligence means carelessness only.
  3. Ordinarily speaking, referring solely to conduct by “the Publisher” should include any action (or failure to act) by its employees, freelancers and agents even if those groups of people are not listed in the clause we’re talking about. In some situations, however, a company might successfully argue that it acted with proper care in hiring the individual involved and, as such, is not responsible for certain acts by that person (e.g., ones that it could not foresee). Listing those groups of individuals in the damages clause should eliminate that possibility.

(Originally published in the Winter 2010 issue of the Authors Guild Bulletin. © Mark L. Levine

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can I sue my publisher? What about the company that bought foreign rights?

Q. My contract for a medical how-to book has a clause which grants me full cover approval. I designed the cover, which includes powerful back cover endorsements from prominent doctors. When it came out in paperback, a year after the first hardcover run, the publisher had changed all the cover endorsements to industry praise as opposed to those I had included. They did this without my permission or knowledge. Is there any recourse? Can I sue them?

This same publisher allowed a foreign language house that bought Spanish-language rights for Mexico and Central America to edit the book to within 1/4 of its original content, thereby making it dangerous to the public. While this hack job was underway, they deliberately did not let me know since they knew I would not agree.

The foreign language house was told to “tear covers.” They then reprinted the same butchered book two years later, with another title slapped on it. They have been selling it in the United States, not their territory, and I have not been getting proper royalties. I have been phoning, emailing and faxing my publisher about this for 10 years ….to no avail. Can I sue my publisher and the foreign one?

A. One of the first things law students learn in law school is that the proper question is not “Can I sue?” but “Can I win?” Virtually anyone can sue. Just have a lawyer draft the proper papers (or — not recommended — do it yourself) and pay the relatively low court filing fee.

Even though the proper question contains the same three words as yours and the law student’s, the answer is far from simple. And even if a columnist, friend or your lawyer says, “Yes, you can win,” it doesn’t mean that you will. Though people wanting to sue often refuse to believe it (I’m not saying that this is the case in your situation), there are frequently good factual or legal arguments on both sides of the issue and, even if you or your lawyer think you have the better case, a judge or jury could well side with your opponent in any dispute about the facts of the case (often depending on “he said/she said” testimony), the judge could find your opponent’s legal arguments more persuasive, or the lawyer for the other side could just do a better, more persuasive and effective job than the lawyer (s) you have hired. Even when you have citations to previous, analogous cases that appear to support your position, there may be one or two facts in your situation that differ somewhat from those in the case(s) you and your lawyer are relying on, or facts in that case that are missing from your situation or that exist in your situation but are not in the case you are relying on. These differing fact patterns could suffice from a legal viewpoint to distinguish your case from the ones you are relying on, enough to give a judge sufficient reason not to rely on the precedents you cite.

The cost of lawyers and related expenses, the amount of time it will take for the case to get to trial and through any possible appeals, the emotional toll and inconvenience of being involved in litigation, the possibility of the publisher filing counterclaims or related lawsuits against you in retaliation, and what you will win if victorious are all factors you need to consider in deciding whether to bring a lawsuit. You will also need to consider the effect that bringing a lawsuit will likely have on the publisher — its analysis for itself of the same factors listed above and such other factors as its reputation, the amount of management time the litigation will take up, the distraction the case might cause for the publisher, and the likelihood of it staunchly opposing the suit or deciding it’s better to settle and at what point in the process it might do so.

People often significantly underestimate the cost of litigation. To lawyers or sophisticated businesspeople, it is not surprising that lawsuits that non-lawyers think are “simple” can end up costing a plaintiff $100,000 or so in legal fees if the company being sued has its own lawyer (or can afford to hire one), decides to contest the suit vigorously, and the case goes to trial and is appealed. Even without realizing this, expense-conscious individuals considering a lawsuit often ask lawyers if they will represent them on a contingency basis. The reality is that virtually no knowledgeable lawyer who has a for-profit practice will take a publishing case or similar litigation on a contingency basis. The results in most of those cases are uncertain, the time and cost in properly preparing a case significant, and the amount on which the contingency percentage would be based likely much too small.

That being said, I would love it if someone with the funds, top-notch lawyers, perseverance, intelligence and emotional stamina would sue publishers like the ones you describe (and even some more reputable) who often ignore provisions in their author-publisher contracts because they assume that authors won’t have the money, lawyers or fortitude to sue and the amount apt to be won by the author not worth the investment involved.

(Originally published in the Winter 2008 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can I sue my publisher in the state I live in or must I sue it where it’s located?

Q. I am thinking of suing my publisher. It’s located in Florida, and the contract says that it’s governed by Florida law. I live in New York. Do I have to sue the publisher in Florida or can I sue it in New York? Do I need a Florida lawyer to sue it in Florida?

A. Just because the contract says it is governed by Florida law does not mean you have to sue in Florida. The “governing law” provision (also called “choice of law”) only dictates which state’s laws must be used in interpreting the contract, not where the suit must be brought. If the proper procedures are followed, the case can be brought in New York (or another state where the publisher does business) regardless of whether the issue involved is a legal or factual one. To the extent the answer involves Florida law, the New York (or other) court could read the Florida statutes and cases and use Florida law to decide the case.

On the other hand, if the contract says that all lawsuits between you and the publisher must take place in Florida or has a sentence similar to “the jurisdiction of the courts in Florida is exclusive,” then you will have to bring your lawsuit there. Clauses like these are known as an “exclusive jurisdiction” or “choice of venue” clause. Not all publishing contracts have them.

If the suit must be brought in Florida and you know a good Florida litigator who is knowledgeable about book publishing and is within your price range, seriously consider hiring him or her. But the person you hire need not be a member of the Florida bar; you might find it more convenient to deal with a knowledgeable, experienced lawyer near where you live. In areas like contract law, the laws of various states rarely differ significantly in key respects. And many experienced litigators in New York know lawyers in Florida (and other states) who, for relatively small amounts, will nominally act as co-counsel on your lawsuit to assure compliance with the procedural requirements in the relevant state (primarily reviewing the papers to make sure they comply with technical procedural requirements of law and allowing the Florida counsel’s name to appear on the legal papers as “local counsel”). If you and your lawyer decide to file the lawsuit in a federal court located in Florida instead of a Florida state court, then those steps should not be necessary.

In negotiating a contract where author and publisher are in distant states and the publisher’s form provides that the jurisdiction of its home state is exclusive, authors should try to change “exclusive to “non-exclusive.” If the publisher won’t accept that, seek to provide — on the “what’s good for the goose is good for the gander” theory — that litigation in either of your home states will be permitted. In offering the latter, authors can point out that they are still giving up a lot because, without the contractual limitation, they would be entitled to sue the publisher in any state where it does business.

(Originally published in the Winter 2009 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Do I have cover approval for the paperback edition of my hardcover book?

Q. My contract grants me cover approval but the paperback publisher never sent me the cover to look at. It’s totally different from the dust jacket on the hardcover, which was fabulous. I’m told that paperback publishers have the right to design their own covers. Is that true?

A. The contract between you and your publisher essentially covers only copies of your work published by that publisher, whether hardcover, paperback or electronic. With very limited exceptions, its provisions do not apply to copies of your work published by licensees of your publisher. If there are particular provisions in your contract that you want carried over to an edition published by any of its licensees, you should list those provisions, by repeating them or by cross-reference to the clauses containing them, in a section of the contract which says that the publisher must include them in its contract with the licensee. Another way would be to say, each time one of those provisions appears in the contract, that the provision must also be contained in any agreement the publisher signs with a licensee for another edition of the book.

Among the clauses that an author is most apt to want included are a prohibition against material by anyone else (whether advertising, the work of another author or anything else) being included in your book; the right for you to purchase copies of the reprint edition at a discount for resale; and cover approval. The most important provision—no changes to what you wrote—is generally covered by the publisher’s contract with the reprint publisher and not something you typically have to worry about.

If your publisher balks at including certain provisions you request because it thinks they might limit its ability to license the book for reprint, you have three alternatives. One is to agree with the publisher and omit them from the contract. The second is to remind the publisher that if the relevant provision in fact turns out to be an impediment to signing the license, it can ask you at that time to waive the requirement, so the provisions should be left in as mandatory. The third, for the arguably problematic provisions only, is to change the operative language in the section from “the publisher shall include the following provisions in the reprint contract” to “the publisher shall use its best efforts to include the following provisions….” I’m generally a fan of the second alternative.

(Originally published in the Winter 2009 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can my publisher stop paying me royalties because its distributor went bankrupt?

Q: My publisher told me that I won’t be getting royalties for copies of my book that it sold lately because all its bookstore sales were made through its distributor and the distributor recently filed for bankruptcy. Is there language I can put in my next contract to make sure this won’t happen to me again?

A. Bad debt and credit problems are traditional business operating risks that publishers should properly assume; they are not an author’s responsibility.

To prevent a publisher claiming that it has the right not to pay royalties because it was not paid for books it sold, add “There shall be no reduction in royalties or ‘amount received’ because of nonpayment by customers” or similar language to your next contract. (The reference to “amount received” can be deleted if your royalties are based on the book’s suggested retail price rather than on the publisher’s net receipts.) It makes no practical difference where this language is added, although the logical place would be in the section about royalty statements or the one listing royalty rates.

If your royalties will be based on the “amount received” by the publisher from sales of your book (or if the contact says that your royalties are based on the publisher’s “net receipts” and that term is defined as “amount received”), you can also ask that “amount received” be replaced by “amount payable” or that net be defined as follows:

As used in this Agreement, “net receipts” means all monies payable to the Publisher from the sale or licensing of the Work pursuant to this Agreement. In determining “net receipts” for purposes of the royalty and licensing percentage sections of this Agreement, shipping, handling and insurance charges, and sales and similar taxes shall be excluded.

Not all publishers using “amount received,” directly or indirectly, intend that it be construed as excluding bad debt. Those using it innocently will be glad to clarify the issue. For those who understand and mean what they are saying, the clarification is even more important.

Note: Rather than readily accepting a publisher’s statement that it is not required to pay royalties on books sold by it because its distributor has filed for bankruptcy and didn’t pay the publisher, authors should contact the Authors Guild or consult a lawyer to see if your publisher is correct. Even if your contract does not have any of the language recommended here and says that your royalties are based on “amounts received,” you may still be able to argue successfully that from a legal viewpoint the distributor was acting on the publisher’s behalf in collecting the money – in legal terms, as “agent” for the publisher — and that for purposes of your contract, the distributor’s receipt from the bookseller of payment for your books was the same as if the publisher itself received that money.

(Originally published in the Spring 2007 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

How much material can I use from one of my earlier books?

Q. I currently have two manuscripts that I am trying to place. One is a collection of essays, the other a memoir. The collection includes an essay called “Relief.” The memoir grew out of this essay, whose contents are dispersed throughout the memoir’s four main sections. The total number of words from “Relief” comprises approximately 7 percent of the entire memoir.

My questions:

  1. If a publisher takes the memoir first, would a second publisher need to acquire rights to reprint the essay in the collection?
  2. If a publisher takes the essay collection first, would a second publisher need to acquire rights to reprint the parts of “Relief” that are included in the memoir?

A. The best way to handle your concern is not via a lawyer’s analysis of whether publication of the second book (whichever it is) violates the copyright in the first book or is permitted because of the “fair use” doctrine, even if the lawyer doing the analysis is a specialist in copyright law. Questions of “fair use” are frequently subjective rather than objective. Lots of money is spent in lawsuits where both sides are convinced they are right and have written memoranda from their respective lawyers saying why. It is far better — less expensive, less emotionally distressing and more certain — to resolve the matter in the contract with the publisher with whom you sign a contract first, regardless of which book it is for. This will avoid any unnecessary misunderstanding or dispute, as well as any question as to whether publication of the second book violates the copyright of the first book or whether the second violates the typical provision in a publishing contract which prohibits an author from publishing competing books.

If the publisher of the first book (whichever it is) agrees with you that the second book does not compete with the first, then the way to handle your concern from a contractual viewpoint is to insert a paragraph in your contract for the first book that says (i) nothing in the contract prohibits you from publishing the second book, and (ii) if anything in the second violates the copyright in the first, permission is granted to you to publish the second upon whatever terms you decide on with its publisher.

You should consult a publishing lawyer to draft the precise language for you since there are several ancillary items that should be covered in the provision, e.g., that the right to publish the second book includes both the right to publish it yourself and the right to license publication rights to others; the extent to which the manuscript for the second book may be revised and still be considered the same version for which the first publisher is giving its permission; that the right to publish the second book is not a one-time right but extends to multiple editions, whether published by one or different publishers, and in English or in translation.

(Although some might question how one book you wrote could violate the copyright in something else you also wrote, the answer – implicit in your question – is that once you have granted the first publisher the right to publish your book, that publisher must grant permission to you and the second publisher in order for the second book to be published since the first publisher, in essence, now shares the copyright in your first book. Otherwise, you would be unable to warrant to the second publisher, as typically required in publishing contracts, that nothing in the second book violates the copyright of any other book.)

For the purpose of this answer, it makes no difference which of the books is published first.

Without seeing the two books, I’m reluctant to say whether anything in one would violate the copyright in the other. Once you get a publisher interested in either book, and assuming that publisher won’t add a section to your contract like the one I suggest (which would effectively sidestep the issue but still accomplish what you want by mutual agreement, a less expensive and more conciliatory approach), you could then consult an experienced copyright lawyer if you wish to proceed. My initial reaction, however, is that publication of the second book—whichever it is – would violate the copyright of the first. Keep in mind that the percentage of one work used in another is only one criterion for determining whether permission is needed or whether the “fair use” exemption applies and, generally speaking, should not be relied on as the sole factor in determining that permission is not required. Moreover, note that the language relating to this factor in Section 107 of the Copyright Act is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole,” not the percentage of the second work that the copyrighted work (in your case, the essay) constitutes. Indeed, from what you write, 100 percent of a complete, copyrighted work – the essay “ Relief” — appears in the memoir; the 7 percent number – the percentage that the essay bears to the entire memoir — is irrelevant for purposes of this test.

(Originally published in the Winter 2008 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can I sue my publisher?

Q. My contract for a medical how-to book has a clause which grants me full cover approval. I designed the cover, which includes powerful back cover endorsements from prominent doctors. When it came out in paperback, a year after the first hardcover run, the publisher had changed all the cover endorsements to industry praise as opposed to those I had included. They did this without my permission or knowledge. Is there any recourse? Can I sue them?

This same publisher allowed a foreign language house that bought Spanish-language rights for Mexico and Central America to edit the book to within 1/4 of its original content, thereby making it dangerous to the public. While this hack job was underway, they deliberately did not let me know since they knew I would not agree.

The foreign language house was told to “tear covers.” They then reprinted the same butchered book two years later, with another title slapped on it. They have been selling it in the United States, not their territory, and I have not been getting proper royalties. I have been phoning, emailing and faxing my publisher about this for 10 years ….to no avail. Can I sue my publisher and the foreign one?

A. One of the first things law students learn in law school is that the proper question is not “Can I sue?” but “Can I win?” Virtually anyone can sue. Just have a lawyer draft the proper papers (or — not recommended — do it yourself) and pay the relatively low court filing fee.

Even though the proper question contains the same three words as yours and the law student’s, the answer is far from simple. And even if a columnist, friend or your lawyer says, “Yes, you can win,” it doesn’t mean that you will. Though people wanting to sue often refuse to believe it (I’m not saying that this is the case in your situation), there are frequently good factual or legal arguments on both sides of the issue and, even if you or your lawyer think you have the better case, a judge or jury could well side with your opponent in any dispute about the facts of the case (often depending on “he said/she said” testimony), the judge could find your opponent’s legal arguments more persuasive, or the lawyer for the other side could just do a better, more persuasive and effective job than the lawyer (s) you have hired. Even when you have citations to previous, analogous cases that appear to support your position, there may be one or two facts in your situation that differ somewhat from those in the case(s) you and your lawyer are relying on, or facts in that case that are missing from your situation or that exist in your situation but are not in the case you are relying on. These differing fact patterns could suffice from a legal viewpoint to distinguish your case from the ones you are relying on, enough to give a judge sufficient reason not to rely on the precedents you cite.

The cost of lawyers and related expenses, the amount of time it will take for the case to get to trial and through any possible appeals, the emotional toll and inconvenience of being involved in litigation, the possibility of the publisher filing counterclaims or related lawsuits against you in retaliation, and what you will win if victorious are all factors you need to consider in deciding whether to bring a lawsuit. You will also need to consider the effect that bringing a lawsuit will likely have on the publisher — its analysis for itself of the same factors listed above and such other factors as its reputation, the amount of management time the litigation will take up, the distraction the case might cause for the publisher, and the likelihood of it staunchly opposing the suit or deciding it’s better to settle and at what point in the process it might do so.

People often significantly underestimate the cost of litigation. To lawyers or sophisticated businesspeople, it is not surprising that lawsuits that non-lawyers think are “simple” can end up costing a plaintiff $100,000 or so in legal fees if the company being sued has its own lawyer (or can afford to hire one), decides to contest the suit vigorously, and the case goes to trial and is appealed. Even without realizing this, expense-conscious individuals considering a lawsuit often ask lawyers if they will represent them on a contingency basis. The reality is that virtually no knowledgeable lawyer who has a for-profit practice will take a publishing case or similar litigation on a contingency basis. The results in most of those cases are uncertain, the time and cost in properly preparing a case significant, and the amount on which the contingency percentage would be based likely much too small.

That being said, I would love it if someone with the funds, top-notch lawyers, perseverance, intelligence and emotional stamina would sue publishers like the ones you describe (and even some more reputable) who often ignore provisions in their author-publisher contracts because they assume that authors won’t have the money, lawyers or fortitude to sue and the amount apt to be won by the author not worth the investment involved.

(Originally published in the Winter 2008 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Do the bankruptcy laws abuse authors’ rights?

Q. The bankruptcy of Triskelion Enterprises, LLC, to which I had sold a romance, has brought to light an outrageous abuse of authors’ rights by federal bankruptcy judges. Many publishing contracts—I’ve sold eighty novels, so I’m very familiar with these– include a clause stating that, in the event of the publisher’s bankruptcy, all rights in the contracted work revert to the author. I discovered that bankruptcy judges routinely void this clause and allow the trustee to sell our contracts, en masse, to the highest bidder. Their rationale is that bankruptcies are adjudicated under federal law, whereas contracts are governed by state law, and federal bankruptcy law takes precedence. Thus, in addition to losing the money due us from royalties, authors are stripped of creative control over our books. This could happen to any author, with any publisher, as well as to composers, lyricists and illustrators. We get no say over who buys these contracts, and there is no guarantee this will even be a legitimate publisher. One can easily imagine situations in which our work would be distorted and our reputations harmed. This is a situation that can only be rectified by an act of Congress, and I urge everyone to write his or her senators and congressperson urging that they sponsor a bill barring bankruptcy judges from voiding these contract clauses.

A. Although I understand your annoyance and share your dismay that the termination clause is unenforceable as a matter of law, I disagree with several of the underlying assumptions of your letter.

  1. Judges are not negating the provision of their own accord but are applying basic constitutional principles. Bankruptcy, like the First Amendment, is a right that is guaranteed by the United States Constitution (Article 1, Section 8). There are many examples where federal law trumps state law (civil rights, New Deal legislation, gun control, abortion, auto gas emission limits). To argue against this requires an argument based on some other constitutional principle rather than a dislike of the result. I don’t see that other constitutional principle here.
  2. Courts are not discriminating against authors or other creative individuals when they rule that the typical termination clause in publishing agreements is unenforceable in a bankruptcy proceeding. Similar clauses exist in many contracts that do not involve publishing companies or creative individuals and, with limited exceptions, those contracts are not permitted to automatically terminate either. Lacking this discrimination or another appropriate reason (see point 5 below), I see no valid reason why we as authors should seek special treatment.
  3. Your concern that authors have no say over who buys their contracts ignores the fact that authors do have the right to present their views to the bankruptcy court in the same manner as others who have contracts with the bankrupt company, even though it is a right that few avail themselves of. Your concern that authors’ works could be distorted by the acquiring company overlooks the fact that it is legally bound by your contract’s provisions in the same way that the original publisher was; thus you have the same rights against the new company as you had against the old in the event it distorts your work or otherwise breaches your contract.
  4. I fail to understand how you lose creative control over your books. Your book has either been published already or not. If it has been, there is no creative control left to be had. And if it hasn’t been, you have two options: you can return your advance and not deliver the final manuscript (if you don’t like the new publisher) or you can hold the new publisher to the provisions all authors should have in their contracts that prohibit the publisher from making changes in your manuscript (with certain limited, specified exceptions) without your consent.
  5. I’m not unsympathetic to the difficulty that the ordinary author has in obtaining proper legal representation in a legal proceeding and being able to afford top-notch (or any other) counsel. But these are problems that most citizens have every day in legal proceedings of virtually every type and is not peculiar to our situation as authors. For us to argue for a special privilege simply because we are writers is without doubt appropriate in certain situations (such as censorship, journalist “shield” laws and the like), but I don’t consider our losing money or property because we entered into a business transaction with a company that ended up in financial difficulty to be among them.

Thanks to Gayle Ehrlich of Sullivan & Worcester LLP, Boston, Massachusetts, for her advice concerning federal bankruptcy law. Please note the more detailed discussion of bankruptcy law and author-publisher contracts in my column in the Summer 2006 issue of the Bulletin.

(Originally published in the Fall 2007 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Does an e-book edition mean that my book never goes out of print and rights don’t revert to me?

Q. Both my publishers are telling me that my books will never go out of print because electronic and print-on-demand editions will always be available. Is there any way to deal with these claims?

A. You raise an important question. The subject is likely to remain a contentious one and will probably be resolved only after several definitive and consistent decisions are reached in future lawsuits involving the issue.

Assuming that a contract does not specifically grant e-book rights to the publisher, the decisions in those lawsuits will largely depend on the specific language in each contract’s “out of print” clause. If, as the Authors Guild has been advising members for at least the past 35 years, your contracts specifically say that “in print” is based solely on the sale of hardcover and paperback editions, you don’t need to worry about e-books being a factor and even the most recalcitrant publisher should agree. If you also included language long recommended by the Guild that copies produced “by reprographic processes such as Xerox” are excluded for in-print determinations, a publisher is unlikely to have much success claiming that POD copies should be included since both photocopies and POD are single-copy on-demand production methods made possible by new technology. Failure to have either of these provisions in your contract, however, in no way means that your publisher is entitled to include e-books or PODs in its in-print calculations. Authors are not required to be prescient when reviewing proposed book contracts.

If your out-of-print clause has the very broad language widely used 20-30 years ago, viz., that the book is out of print “when the Work is no longer available for sale” — without any criteria for determining availability — it may be tougher to convince obstinate publishers. But your position is no less meritorious, especially if your contract is from that time period. Here, it will be important to argue that since the publisher had no right to print e-book or POD editions in the first place, sales of those editions cannot rightly be considered proof under your contract that a book is in print.

In both situations, your case will be even stronger if your contract has the fairly standard “reservation of rights” clause that all well-advised authors should have in their contracts and which virtually no publisher has ever objected to, viz., “All rights in the Work not specifically granted in this Agreement to the Publisher are reserved to the Author.”

There are many other types of out-of-print clauses, most of them narrower in scope than the broad “no longer available for sale.” The specific criteria typically listed in those clauses, combined with the points mentioned above, may help you in negotiations with your publishers. Unfortunately, even many of these narrower definitions of out-of-print may not suffice to convince a publisher that you are right (nor clear enough for the publisher to convince you that it is right). This is because it is rare for contracts of any sort to provide specific exclusions for technologies not yet invented. Virtually all of these contracts were drafted by publishers, however, and any vagueness or ambiguity in them should be resolved against the draftsman, a concept often found in court decisions involving a broad variety of contracts.

Because this issue is such a common and important one, it would be good if authors with the same publisher and the same language in their contracts, or with different publishers but where the language in their contracts is the same, got together to share costs and hired a top-notch litigator to bring the case, or some organization did so on their behalf.

In any event, if you believe your book is out of print and your publisher says it isn’t because it has (or intends to) license an e-book edition or because an online, POD or e-book edition is available through Google Book Search or another site, you should promptly give a written out-of-print notice to your publisher. Be sure to carefully follow the procedures outlined in your contract’s out-of-print clause. Sending that notice will start the clock running on the time period in that clause. Delay in sending the notice helps only the publisher since it risks nothing by taking no action while “considering” the issue or stalling you.

State in that notice—which typically requires a demand that the publisher put the book back in print itself or via a licensee—that an e-book or POD edition will not satisfy that requirement. Also consider stating, after consultation with your lawyer, that if the publisher attempts to sell or license any such edition, or print any version whatever after the termination of the 6- or 12-month period specified in your contract’s out-of-print clause without having properly put the book back in print before that deadline or licensing it by that date, you explicitly reserve the right to exercise all rights available to you under law and will hold it liable for all damages that result if it publishes the book without authorization. Add that your remedies will include the right to injunctive relief and that those damages will include statutory damages under the copyright law.

Crucial to determining whether sales of e-books (or PODs) should be included in determining whether your books are out of print, however, is determining whether your publisher has the right to publish or license e-book (or POD) editions. Given your question, I have assumed in this answer that your contract does not specifically grant these rights (which, of course, may not stop some publishers from claiming otherwise). If your publisher clearly has those rights, then unless you had the foresight to include some sophisticated provisions in your contract, you likely have no good argument. But if your contract is one of the older ones where publishers were simply granted the right to publish books “in book form,” you are right to contend that it did not get e-book rights too. Although decided under circumstances that may limit its use as conclusive precedent, Random House v. Rosetta Books LLC, a 2001 case available online, is strong support for this view.

A final note: When signing any new contracts, try to include provisions that will enable you to regain the rights to traditional print editions of your book even while the publisher or its licensee retains the e-book rights if the latter are what keeps the book “in print.” How to do this is too lengthy to explain here. The “Out of Print” chapter in the new edition of my book explains how to do this.

Please note that there are additional differences and similarities between e-book and POD editions that may be relevant to answering your question more completely, but space does not permit discussing those here.

(Originally published in the Summer/Fall 2009 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

What should I watch out for in the “competitive books” clause?

Q. Is there anything I have to be particularly careful about in the “competitive books” clause?

A. Yes. Lots.

The most important is to make sure that the prohibition on competitive works applies only to competitive books. Otherwise, your publisher might be able to prohibit you from publishing certain magazine articles and very likely could prohibit you from licensing an “app” on the same subject to app publishers.

But the following points are important too.

  1. Narrow the section’s scope as much as possible by carefully defining what kind of book would be competitive, e.g., “a book on the same subject directed to the same audience and treated in the same manner and depth.”
  2. If the book is fiction, try to get the clause deleted altogether. Many publishers will insist on it only for nonfiction books.
  3. Add a sentence saying that books featuring the same character (in the case of fiction) and sequels are not competitive.
  4. Add a sentence saying that the prohibition will not apply to books offered to the publisher under the contract’s option clause and declined by the publisher.
  5. Try to have the section apply only for a limited number of years, e.g. three or four. This is often a way to bridge disagreements between you and the publisher about other aspects of the clause, and more publishers will agree to this limitation than one would expect.
  6. Especially if you are unable to limit the time period during which the section applies, provide that it applies only when a specified number of books have been sold within the most recent two six-month royalty reporting periods. Or only when the amount of money you received in royalties during those periods exceeds a specified amount. These numbers, whether of books sold or royalties received, should be significantly higher than those used for out-of-print determinations. There is no good reason for a publisher to insist that the low numbers in a typical contract’s out-of-print clause should prevent you from publishing another book on the same subject that could reach new readers and earn you significantly more money than you’re getting under the existing contract. The same point — setting more stringent sales criteria — should also apply to your right to license an app on the same subject as the book if the publisher refuses to limit the section’s scope to books.
  7. If you publish under more than one name, specify that only books published under the name on the book under contract are covered by the section.
  8. Provide that if the right to publish print-on-paper books reverts to you while the publisher retains e-book rights (or vice-versa), then copies published in the reverted medium will not be considered competitive under the non-compete section. This situation could occur if your contract has (as it should) separate out-of-print provisions for your e-book and print-on-paper editions. One way to phrase this point contractually might be to say “This Section [insert section number] does not apply to the exercise of any rights granted in this Agreement which revert to the Author in accordance with the provisions of this Agreement.”

(Originally published in the Fall 2011/Winter 2012 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Are print-on-demand books considered print-on-paper or electronic editions?

Q. Are print-on-demand books considered print-on-paper or electronic editions?

A. They are generally considered print-on-paper (“POP”) books, but there are arguments on both sides.

Favoring their treatment as electronic editions: until the time of actual purchase, they exist only as an electronic file and not as a printed book.

Favoring their treatment as print-on-paper editions: the purchaser receives a print-on-paper book, not a file to be read on a computer or other e-device.

To avoid possible future disagreements between you and your publisher, your contract should specify how you and the publisher intend print-on-demand (“POD”) books to be treated. If the two of you agree, they can even be treated differently in different sections of the agreement.

Clauses affected by this decision primarily include grant of rights, royalties, out of print and reversion of rights. If your contract includes — as it should — provisions for separately determining when your e-edition and print-on-paper editions go out of print, you need to avoid confusion about what rights revert to you.

A reversion of POP rights to you will be illusory — and you will not find a traditional publisher interested in bringing out a new edition — if your original publisher, retaining the e-rights after your POP edition goes out of print, can cause a POD edition to be printed whenever someone wants to buy a traditional book. So even if your contract treats PODs as electronic editions for royalty or out-of-print purposes, specify that they are treated as POP copies for grant of rights purposes if POP rights revert to you when the POP edition goes out of print.

(Originally published in the Fall 2011/Winter 2012 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.

Can someone else revise my book?

Q. The contract for my new nonfiction book has a revision clause that says that if I don’t revise the book, the publisher can choose the reviser and pay the person from amounts that would otherwise be paid to me under my contract. This seems pretty broad since it means the reviser can get everything and I could get nothing. What changes do you suggest I ask for in this section?

A. The best thing to do is substitute language saying that the book can’t be revised unless both you and the publisher agree. That way, you don’t have to worry about the issue or spend time negotiating the clause until the situation arises.

Some publishers of certain nonfiction books, especially textbooks, won’t agree to this. In that case, there are at least four changes you should make in the clause (and which most publishers are amenable to):

  1. Provide that if you are unable to do the revision (or simply don’t want to), you will have the right to choose the reviser (subject to the publisher’s consent, not to be unreasonably withheld) and determine the amount to be paid to that person. Also provide that if you are dead, your estate will have that right. This should ensure that the monies paid to the person doing the revision are reasonable and commensurate with the amount of work the person is required to do.
  2. Provide that if neither you nor the estate exercises this right, the fee paid to the reviser has to be negotiated on an arms-length basis. This could lessen the possibility that particularly favorable terms are given to a friend of the editor or publisher or to a company employee. It will also help, if you can get it, to add that the compensation paid to the reviser won’t exceed what is traditional and customary for the type of book involved and the type of revisions to be done (both, admittedly, fuzzy concepts but you get the idea).
  3. Provide that the reviser’s work will be done on a work for hire basis, with the copyright in that work to be in your name. This will facilitate your republishing your book (with another publisher or as an ebook) if the revised edition goes out of print and the rights revert to you. It is particularly appropriate since, even if the publisher pays that person an advance, that amount will ultimately be deducted from royalties and subsidiary rights income otherwise payable to you.
  4. In situations where neither you nor your estate select the reviser, limit the amount paid to that person that can be deducted from amounts otherwise payable to you, especially if the amount payable is stated as a percentage of what you would otherwise get. In particular, if the reviser will be getting royalties, limit the percentage of your royalties that can be paid. It’s okay for the percentage to increase each time a new revision is done without you, but it should never reach 100 percent or even get close to it. Remember, the book became successful enough for the publisher to want to revise and republish it because of your work on the book at the start (whether because of how it was structured, what you wrote or because of your reputation). You and your heirs should always be entitled to a percentage of every revised edition — no matter how much it changes — because of that. In my opinion, that percentage should never go below 25 percent no matter how often the book has been revised, though you may think it should be higher or lower and should use your own judgment in negotiating that.

(Originally published in the Summer 2011 issue of the Authors Guild Bulletin. © Mark L. Levine)

Answers to questions on this site are general in nature only. You should consult a lawyer for information about a particular situation. For more information about book publishing contracts and issues, see Levine’s book.